A LEGISLATIVE COMMISSION appointed to study the appeals system in New Hampshire recommends a gradual restoration of the right to an appeal for all litigants in the state’s justice system.

"The commission recommends that steps be taken...to return to a system under which each litigant will have a right to more meaningful appellate review in some forum prior to the ultimate resolution of his or her controversy," wrote the commission’s chair, Rep. Robert W. Rowe, in Recommendation 1 of the commission’s report issued in November.

The Appellate Reform Study Commission, created by HB 135, supports as a first step legislation that would authorize the Superior Court to hear appeals of worker’s compensation disputes decided by the Compensation Appeals Board and landlord-tenant disputes that are initially heard by the district court. These reviews would be based on the original record, and would not require de novo evidentiary hearings. This would remove about 150 cases from the Supreme Court’s caseload. Bills that would accomplish these objectives have been introduced in both chambers.

The commission also is considering a proposal made by Supreme Court Associate Justice James Duggan, who, while testifying before the commission on behalf of the entire court, suggested litigants be given the choice of a discretionary review or an appellate review as a matter of right. Under this scenario, according to commission Chair Rowe, appellants who seek an appeal by right would be required to submit full transcripts of their case as well as pleadings, which would result in increased filing costs for litigants. The Supreme Court estimated that an additional $500,000 in funding for more lawyers and support staff would also be needed to implement this change.

Litigants who chose the option of an appeal would thus receive a review of the merits of their case, but the level of review – including the option for oral argument, the number of justices participating in the case and the nature and extent of the order disposing of the case – would be at the court’s discretion. As Rowe put it, this means that litigants would have the choice of guaranteeing that their case was decided by the court, but it would require a greater up-front investment. It could be especially helpful in some error-correction cases that Rowe fears may not be accepted by the court under its current screening process, where justices do not review transcripts.

Rowe said it was clear from the committee’s work that despite the court’s diligence at screening, some worthy cases escape notice. "Based both on testimony received by the commission and on the limited nature of the materials that are available to the court when it makes its acceptance decision, the commission is concerned that at least some meritorious appeals are not accepted by the court," the report said.

Rowe was enthusiastic about being able to offer litigants an option for an appeal by right. "When we first started this inquiry, we thought there were only two solutions: a seven-member Supreme Court or an intermediate court of appeals," said Rowe. He said that the court did not favor expanding the number of justices, and the second option would have created an entirely new bureaucracy – in addition, there is no money for either option. "Now we have the two-avenue option," Rowe said.

Rowe also praised the Bar Association and Bar Foundation for organizing the "New Hampshire Appellate Conference: Looking to the Future" held in November 1999 in Bartlett. Rowe, who attended the two-day event that brought together judges, lawyers, legislators and court administrators from New Hampshire with national experts from other states, said it provided a lot of information on the extent of the problem with appellate access and generated many ideas on potential solutions.

In its findings, the commission lauded the recent progress made by the Supreme Court in addressing the appellate logjam. The court last year created the 3JX docket process for handling certain cases that do not require full written opinions, and the court accelerated its process to generate full opinions "at a pace that exceeds recent historic levels." The court in 2001 was expected to have issued more than 200 opinions, the highest level since 1985. "Witnesses testified that this productivity rate...is probably not sustainable without jeopardizing the quality of the court’s work product," the report said.

While it recognized the headway the court had made in reducing its backlog, the commission – composed of legislators, Bar members, judges and members of the public (see accompanying list) – noted that the current system had the following flaws:

• A case acceptance rate ranging from 49.6 percent to as low as 32.9 percent, usually in the 40 percent range;
• Fewer than 30 percent of divorce and family law appeals are accepted, compared to higher numbers of criminal and administrative appeals;
• Between 10 and 20 percent of Supreme Court justices’ time is spent on screening cases;
• When cases are not accepted for review, litigants may have the perception that their appeal was not thoughtfully considered – especially given the fact that a declination is typically unexplained.

Ultimately, the commission concluded that "any citizen whose civil dispute or criminal liability has been resolved by the state’s justice system should have a right to secure at least one level of appellate review."

The commission also asked to continue its existence another year to help develop "a long-term approach for attaining universal access to appellate review."

Peter Beeson, vice chair of the study commission and an attorney with the Devine Millimet law firm, said: "Our work is not yet complete. We have recommended jurisdictional changes that should relieve some of the caseload pressure on the court. Long term solutions – most of which involve increased resources – are still necessary to allow the court to carry out meaningful appellate review in all cases."

Beeson said he was pleased that the panel members took their task so seriously. "Working with this commission was a rewarding experience. Attendance at hearings was excellent. The members were clearly aware of the importance of the issues and were prepared to devote the time necessary to understand and carefully consider options for improving our appeals process."

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer